Suddenly There Are So Many Liberals On Legal Twitter

It’s not my “reasoning,” it’s the way that the New York law is written https://t.co/9to4PfcctF

— Asha Rangappa (@AshaRangappa_) April 6, 2023

It’s uncharged in Trump’s indictment. It’s the predicate to bump up the false records misdemeanor to a felony. You don’t have to directly charge the underlying offense, just show there was an intent to conceal it. Capisce? https://t.co/FYNd6RFHun

— Asha Rangappa (@AshaRangappa_) April 6, 2023

My critique of conspiracy law was not "mine."  I still remember it, 40 years later (odd what sticks in the memory and what doesn't) in the lecture from my CrimLaw professor in my first year in law school.  He'd practiced criminal law, he brought some experience to the subject.  (He's the same professor who taught us all, again from experience, "They don't catch the smart ones.")  He spent some time explaining the elements of criminal conspiracy, emphasizing his rather law professorial discomfort with the idea that conversations alone could be crimes, even if the conversations never led to actions putting ideas into play.  Ordinarily a "guilty mind" (mens rea) is not a crime without an action that reflects the intent, or mens rea.  (I'm not putting it entirely clearly, but it would take a few pages of legal reasoning just to begin to be as clear as I can about it, and then it would still be as clear as mud.  All I can tell you is, this is one of those topics where you really do have to "think like a lawyer," and that's not something you can pick up in a blog post.) But conspiracy makes the act of expressing your "guilty mind" the crime itself.  Which, as I say, is a "short circuit."  But the courts allow it.

It's amusing to see people on Twitter trying to wrap their minds around a similar concept:  that concealing crimes is itself a crime, and under New York law misdemeanors can become a felony when one crime is not parallel to another (the analogy is to an electrical circuit, if you're wondering) but serial (i.e., in series).  One crime begets the next begets the next, in other words, and the cumulation of crimes all because of the initial crime can raise the several misdemeanors to a felony.  The first obvious justification for this is to dissuade people both from committing the initial misdemeanor (for which you will be punished), and the subsequent crimes, for which you will face greater punishment.  The sum of the parts becomes greater than the whole, in other words.

Which is all that "multipliers" in criminal sentencing were ever about; but those apply to non-white, or at least poor ("poor" is the functional equivalent of "non-white" in certain circles.  Racism without the race factor; very convenient) defendants.  When it is applied to rich white men, suddenly it's a Constitutional disgrace!

So when Ms. Rangappa points out "You don’t have to directly charge the underlying offense, just show there was an intent to conceal it," she's making the argument for the conspiracy theory of a crime.  This is also why the charging instrument doesn't use the word "conspiracy."  Trump is not being charged with a conspiracy; but there was a conspiracy involved in "the intent to conceal" the initial (and continuing; several payments, went on for months; Cohen met with Trump in the Oval Office to discuss the continuing payments) crime.  Which is a crime itself and enough to bump up the offense level, even without charging it.

As I say, DA's do this kind of thing all day every day.  It's the reason there are plea deals.  The state can make things a lot worse for you, but take the deal and save everyone the court time, and you don't face that even more dreadful future.  Nobody cares how the sausage is made, so long as the non-white people are punished for, well....being non-white.

As for the "real" white people, well....why are you bothering them, instead of getting more of those non-white people off the streets?  Right?  Where have we heard that before, again....?